Airman Appeal Process

Under 49 U.S.C. section 1133, the NTSB's administrative law judges hear, consider and issue initial decisions on appeals from all FAA certificate actions and civil penalty actions involving pilots, engineers, mechanics and repairmen. Also covered are petitions for certification that have been denied by the FAA.

Forms needed:

• Notice of Appeal Form
• Notice of Emergency Appeal Form

Importance of Filing a Timely Appeal or Petition for Review of Certificate Denial

The Board’s Rules require that a certificate holder wishing to file an appeal from an order revoking or suspending a certificate, or assessing a civil penalty, must do so within 20 days of the date on which the Federal Aviation Administration (FAA) serves its order (or, where an emergency order of revocation or suspension is issued by the FAA, within 10 days of service).  Generally, the date of service of the FAA’s order is the date on which the FAA mails the order to the certificate holder.  The mailing date is usually stamped on the first page of the order, and there may also be a certificate of service attached to the order which denotes the date of mailing.  An appeal that is filed after the 20 or 10-day appeal period has expired is subject to dismissal, and will be dismissed if the certificate holder does not have good cause for the delay in the submission of the appeal.

There is also a 60-day time limit for filing a petition for review of a certificate denial under the Board’s Rules, and a petition that is filed more than 60 days after the FAA mails its denial letter will be dismissed unless the petitioner shows good cause for the delay in the submission of the petition.

How Do I File a Petition For Review of a Certificate Denial?

The simplest way to file a petition for review of a certificate denial is to print out, complete and sign Petition for Review Form NTSB.2008.4 in its entirety (including the certificate of service).  Alternatively, you can submit a letter stating that you wish to have the Board review the FAA’s certificate denial.  While it is not required by the Board’s Rules to be part of the petition, it would be very helpful if you include with your petition a copy of the letter from the FAA which informed you of the certificate denial.  You must send the original and three copies of your petition to NTSB’s Office of Administrative Law Judges in Washington, D.C.  We will forward a copy of your petition to the FAA.  No further filings are required from you unless the NTSB’s Office of Administrative Law Judges informs you otherwise.

How Do I File an Appeal From an Order of Revocation, Suspension or Assessment?

The simplest way to file an appeal is to print out, complete and sign Appeal Form NTSB.2005.2 in its entirety (including the certificate of service).  For appeals from emergency orders, Emergency Appeal Form 2005.3 should be used.  Alternatively, you can submit a letter stating that you wish to appeal the FAA’s order of revocation, suspension or assessment.  Although it is not required by the Board’s Rules to complete an appeal, it would be helpful if you include with your appeal a copy of the FAA’s order.  You must send the original and three copies of your appeal to NTSB’s Office of Administrative Law Judges in Washington, D.C., and a copy to the FAA attorney whose name appears on the order, at the address shown on the order.

The FAA’s Complaint

After an appeal is filed from an order of revocation, suspension or civil penalty assessment, the FAA will reissue its order for pleading purposes as the Complaint.  Typically, the FAA does this by transmitting a copy of the order with a cover letter designating the order as its complaint.  The complaint is considered to be filed with the Board and served on the certificate holder/respondent on the date on which it was mailed.  The mailing/service date appears on the cover letter, as well as a certificate of service that is attached to the complaint.

Importance of Filing a Timely Answer

The complaint sets forth factual allegations in numbered paragraphs, which the FAA believes establish the violations charged.  An important part of the air safety enforcement litigation process before the Board is the identification of which factual issues are disputed by the parties.  For this reason, the Board’s Rules require the certificate holder/respondent to file an Answer to the complaint, which admits or denies each of the complaint’s numbered factual allegations.  The Board’s Rules also require the certificate holder/respondent to identify in the answer “affirmative defenses,” which are circumstances that are offered to show that the violation(s) charged should not be affirmed, even if the factual allegations stated in the complaint are proven to be true.

Because the complaint is merely a copy of the FAA’s order reissued for pleading purposes, the certificate holder/respondent does not have to wait for the complaint to be received to start composing, or to file, an answer, and the Board will accept combined appeals and answers, as well as answers which are submitted in advance of the complaint.

Under the Board’s Rules, the answer to the complaint must be filed by the certificate holder/ respondent within 20 days of the date on which the FAA serves the complaint (or, where the appeal is from an emergency order, within 5 days of service).  Any factual allegations that are not admitted or denied in the answer may be deemed admitted.  Also, because the answer is an essential part of the litigation process, the Board has ruled (and such ruling has been affirmed by the courts) that, where an answer is not filed by the deadline set forth in the Rules without good cause for the delay in its submission, all of the facts alleged in the complaint may be deemed admitted.  Thus, the belated filing of an answer (or the complete failure to file an answer) can lead to the entry of a judgment on the pleadings against the certificate holder/respondent.  This means that the violation(s) charged will be considered to have been established if the facts alleged would support those charge(s), and the revocation or suspension ordered by the FAA will be sustained so long as the FAA’s Sanction Guidance Table and/or prior Board case decisions support it.  (If the sanction ordered by the FAA is not clearly applicable, a hearing limited to the issue of sanction may be held; however, the certificate holder/respondent will not be permitted to contest the affirmance of the violation(s) charged at the hearing.)

How Do I File an Answer?

The simplest way to file an answer is to print out, complete and sign Answer Form NTSB.2005.1 in its entirety (including the certificate of service).  Alternatively, you can submit a statement in which you respond to each numbered paragraph of factual allegations by admitting or denying them, and identify any affirmative defenses you intend to raise.  You may also simply photocopy the order/complaint and write “admit” or “deny” next to each numbered factual allegation.  Regardless of how you accomplish this, you must sent the original and a copy of your answer to NTSB’s Office of Administrative Law Judges in Washington, D.C., as well as a copy to the FAA attorney whose name appears on the order/complaint, at the address shown there.

What is a waiver?

If the FAA issues you an emergency order of revocation or suspension, you will be required to surrender your certificate to the FAA immediately (whereas, if the FAA’s order is not an emergency order and you appeal it to the Board, you can continue using your certificate as long as your appeal is pending with the Board).  Because an emergency order will, thus, deprive you of the use of your certificate right away, the applicable law and the Board’s Rules impose accelerated timeframes on the litigation process, so that you may not be deprived of the use of your certificate for longer than 60 days if you ultimately prevail in your appeal.  Among the accelerated timeframes provided for in the emergency rules is that a hearing before one of the Board’s judges must take place within 30 days of the date on which the Office of Administrative Law Judges receives the appeal.

However, there may be situations in which you would like to have more time before going to hearing.  For example, you may need additional time to hire an attorney or gather evidence in support of your defenses to the FAA’s charge(s).  For this reason, you may elect to waive the applicability of the Board’s emergency rules and their accelerated timeframes.  If you do this, the non-emergency timeframes and filing deadlines of the Board’s Rules will become applicable to your appeal.  However, if you are contemplating a waiver, there are two important things you should know.  First, you will still be unable to use your certificate while your appeal of the FAA’s order is pending.  Thus, if you ultimately prevail in your appeal, you stand to be deprived of the use of your certificate for longer than 60 days, sometimes significantly longer, depending on much time it takes for your appeal to be heard by a judge and, if the judge’s decision is appealed to the full Board, how long how long it takes for the Board to issue a decision on the appeal.  Second, a waiver cannot be used to extend any filing deadline that has already expired.  So, for example, if you waive more than 5 days after the FAA has served (i.e., mailed) its complaint, this will not extend the time you have to file an answer to 20 days, and you will need to show good cause for your failure to have filed an answer within 5 days of the complaint’s service.

You may telephone the Office of Administrative Law Judges to waive, but, if you do so, it is advisable that you confirm your waiver in writing.

Other Important Information

Make sure that you keep for yourself a copy of your appeal, the complaint, your answer and any other documents relating to this case in a file or folder, so that you have a record of them and can refer to them when you need to.

Details of the Appeal Process

- 1st Appeal: Appeal to Judge

1. Appeal or petition is filed with the NTSB’s Office of Administrative Law Judges.
2. Appeal/petition is assigned a docket number and is acknowledged by the that office’s Case Manager.
3. For appeals from orders of revocation, suspension or assessment of civil penalty, the FAA files a copy of the order that was issued to the certificate holder/respondent with a letter that designates the order as the FAA’s complaint.
4. Respondent then must file an answer admitting or denying each of the factual allegations stated in the complaint.
5. In all cases, including reviews of certificate denials, requests for discovery of information can be filed by both the FAA and the certificate holder/respondent or petitioner seeking review of certificate denial.
6. A hearing is set by the judge assigned to the case at an appropriate place (see 49 C.F.R. Section 821.37).
7. The hearing is held.  An Initial Decision, affirming, reversing or modifying the FAA’s action is issued by the judge.

- 2nd Appeal: Appeal to the Full Board

1. An appeal from the judge’s decision is filed with the Office of Administrative Law Judges, which sends the appeal and case record/docket to Board's Office of General Counsel.
2. An appeal brief is filed by the appealing party.
3. A reply brief is filed by opposing party.
4. The Board issues an order affirming, modifying or reversing judge's decision, or remanding the case to the judge for further proceedings.
5. If the Board affirms the FAA’s revocation, suspension or civil penalty assessment, and the certificate holder intends to appeal the Board’s decision to the U.S. Court of Appeals, a stay of the Board’s order may be requested.

- 3rd Appeal: Petition to U.S. Court of Appeals

1. The party appealing the Board’s decision files a petition in the U.S. Court of Appeals (D.C. Circuit or circuit in which the party resides).
2. The Board forwards a Certificate of Record to the Court of Appeals (the case docket is forwarded upon a request from the court).
3. Briefs are filed in the court by both parties.
4. The court holds oral argument.
5. The court issues a decision affirming, modifying or reversing the Board, or remanding the case to the Board for further action.